(9) For attorney errors that involve a deprivation amounting to a structural defect, the prejudice inquiry is more limited.

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. AP-75,176

Ex parte RICKIE LYNN CROW, Applicant




ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. W01-59845-T IN THE 283rd JUDICIAL DISTRICT COURT

FROM DALLAS COUNTY

Keller, P.J., delivered the opinion of the unanimous Court.


O P I N I O N




The question in this case is whether an applicant must show prejudice to establish entitlement to an out-of-time petition for discretionary review (PDR) due to counsel's failure to follow the requirements of Ex parte Wilson. (1) We hold that a limited showing of prejudice is required. Finding that applicant has made this limited showing, we grant relief.


I. BACKGROUND

Applicant was charged with the offense of aggravated robbery. He pled "not guilty" and was subsequently convicted. He appealed. Represented by counsel on appeal, applicant challenged the legal and factual sufficiency of the evidence and alleged Batson (2) error. The court of appeals affirmed the trial court's judgment on April 4, 2003, but appellate counsel failed to inform applicant of the court of appeals's decision. As a consequence, applicant did not become aware of the court of appeals's decision until after the time for filing a petition for discretionary review had expired.

In a pro se application for writ of habeas corpus, filed with the trial court on April 13, 2004, applicant contended that he discovered the court of appeals's opinion after his own inquiry, that he was deprived of his right to file a PDR, and that, had one been filed, there was a significant chance his conviction would have been reversed. Applicant did not explain in his application why he believed a PDR would have had merit.

We filed and set this case to determine whether Hernandez v. State, (3) applying the prejudice prong of Strickland (4) to the punishment phase of noncapital cases, (5) had any impact on the rule announced in Wilson. Briefing was requested and applicant was appointed counsel for that purpose. Habeas counsel argued that a showing of prejudice was not required and, in the alternative, that the Batson claim had merit. In its brief, the State claimed that a showing of prejudice was required and that applicant failed to show prejudice because all of his claims on appeal were without merit.

II. ANALYSIS

Hernandez suggests that a prejudice component is always part of an ineffective assistance claim because the government is not responsible for deficient attorney performance and should not be held accountable absent some real harm. (6) But we must also address the present case in light of another, much more recent decision, Johnson v. State. (7) Johnson likewise held that all attorney errors should be viewed through the prism of the Strickland framework, except in conflict of interest cases and where the defendant is denied the right to counsel altogether. (8)

But Johnson recognized that Supreme Court precedent treats certain attorney errors a little differently under Strickland's prejudice prong than is ordinarily the case. (9) For attorney errors that involve a deprivation amounting to a structural defect, the prejudice inquiry is more limited. (10) These errors are rare, but include deficient conduct that results in the deprivation of an entire judicial proceeding, such as an appeal. (11) When a defendant's right to an entire judicial proceeding has been denied, the defendant is "required to show a reasonable probability that, absent counsel's errors, a particular proceeding would have occurred, but he [is] not required to show that the proceeding would have resulted in a favorable outcome." (12) Or put another way, to meet the limited showing of prejudice in this context, "counsel's deficient performance must actually cause the forfeiture of the proceeding in question." (13) As part of showing that the counsel's conduct actually caused the forfeiture of the proceeding, the defendant must demonstrate that he would have availed himself of the proceeding in question. (14)

Although there is no right to discretionary review, an appellant ordinarily has a right to file a PDR in an attempt to persuade us to exercise our discretion. Losing the right to file a PDR constitutes the deprivation of that entire proceeding.

The question then becomes whether counsel's conduct caused the deprivation. In the PDR context, satisfying that showing entails: (1) demonstrating that the appellant was entitled to be in the appellate process, and (2) absent counsel's conduct, the appellant would have timely filed a PDR. When the appellant has no right to appeal, he can hardly be in position to complain about the denial of a PDR. In that circumstance, there should have been no occasion to file a PDR because appeal itself was unauthorized. So, where appeal is barred by Article 42.12, §5(b), (15) Rule 25.2(a)(2), (16) Manuel v. State, (17) or some similar provision or doctrine, or where the defendant waived appeal, the attorney's failure to comply with Wilson does not cause the defendant to be deprived of consideration of his PDR. Likewise, when an appellant would not have filed a PDR anyway, even if he had been notified in compliance with Wilson, then the attorney's action cannot be said to have caused the deprivation.

Applicant's case involved a prosecution on the primary offense, in a single proceeding, that resulted in conviction after a plea of not guilty. No statute, rule, or caselaw doctrine appears to prohibit appeal, no waiver of appeal is apparent, and the court of appeals addressed applicant's appeal on the merits. Consequently, we conclude that applicant was entitled to be in the appellate process. With regard to whether applicant would have filed a PDR, he filed his application less than a year after the court of appeals's opinion became final, he has alleged that he was deprived of the right to file a PDR and that he believes a PDR would have had a significant chance of success, and of course, he is currently asking for an out-of-time PDR. And there is no controverting evidence suggesting that he would not have filed a PDR. Under the circumstances present here, applicant's allegations are sufficient to prove that he would have filed a PDR if he had been properly informed in accordance with Wilson's dictates.

Applicant is granted leave to file an out-of-time petition for discretionary review. Should applicant desire to seek discretionary review, he must take affirmative steps to see that his petition is filed in the Court of Appeals within thirty days after the issuance of the mandate of this Court in this cause.

Keller, Presiding Judge

Date delivered: November 23, 2005

Publish

1. 956 S.W.2d 25 (Tex. Crim. App. 1997).

2. Batson v. Kentucky, 476 U.S. 79 (1986).

3. 988 S.W.2d 770 (Tex. Crim. App. 1999).

4. 466 U.S. 668 (1984).

5. Hernandez, supra.

6. 988 S.W.2d at 772.

7. 169 S.W.3d 223 (Tex. Crim. App. 2005).

8. Id. at 231-232.

9. Id.

10. Id. at 231.

11. Id.

12. Id.

13. Id. at 232 (quoting from Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000); internal quotations omitted, brackets omitted from inserted material).

14. Id.

15. Tex. Code Crim. Proc., Art. 42.12, §5(b)(deferred adjudication defendant cannot appeal trial court's decision to adjudicate guilt).

16. Tex. R. App. P. 25.2(a)(2)(plea bargaining defendant who gets benefit of the bargain can appeal only those matters raised by written motion, filed, and ruled upon before trial or where trial court gives permission to appeal).

17. 994 S.W.2d 658 (Tex. Crim. App. 1999)(defendant cannot attack original plea in appeal from revocation of deferred or regular probation).

If you need an attorney.....if he is any good he will tell you watt an "Ander's Appeal" is? If he tells you not to worry about it.........FIRE HIM !!!

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-74,996





EX PARTE BRIAN KEITH OWENS, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM TYLER COUNTY





Price, J., delivered the opinion of the Court in which Johnson, Keasler, Hervey and Holcomb, J.J., joined. Womack, J., filed a concurring opinion in which Cochran, J., joined. Hervey, J., filed a concurring opinion in which Johnson, J., joined. Keller, P.J., filed a dissenting opinion. Meyers, J., dissents.



O P I N I O N



In this post-conviction application for a writ of habeas corpus,[1] the applicant claims that his appellate counsel did not inform him of his right to file a pro se petition for discretionary review. We filed and set the applicant=s application for writ of habeas corpus to determine whether this Court=s holding in Ex parte Wilson[2] requires appellate counsel to inform his client of the client=s right to file a pro se petition for discretionary review in this Court when appellate counsel filed an Anders brief in the court of appeals. We conclude that filing an Anders brief in the court of appeals does not relieve counsel of the duty under Wilson to inform the defendant that he has a right to file a pro se petition in this Court.

I. The Facts and Procedural History

A Tyler County jury convicted the applicant of aggravated sexual assault of a child. Appellate counsel filed an Anders brief in the court of appeals. Along with the Anders brief, appellate counsel filed a motion to withdraw from representation. The applicant filed a separate pro se brief. The court of appeals affirmed the conviction in a memorandum opinion and dismissed appellate counsel=s motion to withdraw.[3] No petition for discretionary review was filed from the judgment of the court of appeals.

Some time later, the applicant filed his application for writ of habeas corpus alleging, among other claims,[4] that appellate counsel failed to notify him of his right to file a petition for discretionary review. In support of his claim, the applicant attached to his application a letter from appellate counsel, written after the applicant=s conviction had been affirmed by the court of appeals. Counsel=s letter appears to be in response to a letter sent by the applicant to appellate counsel, but a copy of the applicant=s letter is not attached or found elsewhere in the record. The letter said in relevant part:

I received you letter of July 1, 2003, and in answer to question No. 1, I think your chance of Habeas Corpus is much better than your chance on a direct appeal. On Habeas Corpus grounds you will have a much better chance of arguing under undue influence on witnesses and jurors lying about knowledge of the case as opposed to an ineffective assistance of counsel claim. The makeup of the current Texas Court of Criminal Appeals is Pro-State and the chances of a new trial are probably fairly slim.



* * *

I wish you the best of luck seeking your relief under Habeas Corpus. If there is anything I can do in that regard please do not hesitate to write.[5]



In response to the writ application, the State sought an affidavit from appellate counsel. Counsel=s affidavit stated:

After reviewing the record, I determined that there were no issues that could be successfully argued on appeal due to the state of the appellate record. I advised [the applicant] of my conclusions by letter and [the applicant=s] mother of my opinions in person and by telephone. I encouraged them both to hire an attorney to file a writ of habeas corpus for him after the appeal was over. I did not discuss with [the applicant] or his mother filing a petition for discretionary review because, in my professional opinion, a petition for discretionary review would have no chance of being granted and would simply have extended the time [the applicant] would have to wait in prison before filing a writ of habeas corpus that might have a chance of succeeding in reversing his conviction.

The trial court recommended denying relief. We filed and set the cause to determine whether appellate counsel is required to comply with Wilson if counsel has filed an Anders brief on direct appeal. We remanded the cause for a determination of indigency, for the appointment of writ counsel if necessary, and for additional briefing by the parties. The cause is now back before us for decision.

II. The Law

In Ex parte Wilson, we modified our prior holding with respect to what is required of appellate counsel before he concludes his representation of a defendant on direct appeal. A history of the case law leading up to Wilson, and beyond, is helpful to our inquiry whether Wilson requires appellate counsel to inform the applicant of his right to file a pro se petition for discretionary review following Anders proceedings in the court of appeals.

In Ayala v. State,[6] the court-appointed appellate attorney filed an Anders brief. The court of appeals agreed with appointed counsel that the appeal was Awholly frivolous and without merit.@[7] Appellate counsel then filed a petition for discretionary review in this Court, but assigned no particular grounds for review, asking only that this Court Aexamine the record for error.@[8] In the body of the petition, appellate counsel conceded that he was identifying no particular grounds for review, but had filed a petition because his client Ademanded@ that he do so.[9] This Court wrote an opinion for the express purpose of holding that an appellant has no right B constitutional or otherwise B to have an attorney file a petition for discretionary review after a court of appeals has affirmed the conviction. We noted, however, that an appellant is not necessarily without a remedy in the event that appellate counsel deprives him of his right to file a pro se petition for discretionary review by promising to file one on his behalf and then failing to do so.[10] We concluded that those circumstances might give rise to a due process violation.[11]

In Ex parte Jarrett,[12] we held that appellate counsel=s duty to his client extends beyond the rendition of judgment by the court of appeals since, under state law, Athe judgment of an intermediate appellate court in a criminal case does not become final at once.@[13] Until the appellate judgment does become final, we held, Athe appellate lawyer still represents his client and remains under a duty to provide him with satisfactory legal counsel.@[14] To pass constitutional muster, that legal counsel must meet an objective standard of reasonableness under the Sixth Amendment.[15] We acknowledged that appellate counsel had no constitutional obligation to represent the appellant in a petition for discretionary review.[16] But in denying the State=s motion for rehearing, we left intact our holding on original submission that Aappellate counsel does have the duty . . . to advise the appellant of the possibility of review by this Court as well as expressing his professional judgment as to possible grounds for review and their merit, and delineating the advantages and disadvantages of any further review.@[17]

Two years later, however, in Ex parte Wilson, the Court revisited Jarrett.[18] Appellate counsel in Wilson had contacted the appellant when the court of appeals issued its opinion denying his appeal, had sent him a copy of that opinion, and had informed him Athat he did not believe a petition for discretionary review would have any merit.@[19] The particular question upon which we filed and set Wilson=s writ application was whether Jarrett=s holding should be applied retroactively to grant Wilson relief.[20] Rather than decide that question, however, we modified the holding of Jarrett itself. We held that appellate A[c]ounsel may not deny the defendant the right or opportunity to avail himself of discretionary review, but counsel need not discuss the merits of such review because a defendant has no right to counsel for discretionary review.@[21] Still, we did not disturb the core holding of Jarrett, that A[i]f appellate counsel=s action or inaction denies a defendant his opportunity to prepare and file a petition for discretionary review, that defendant has been denied his sixth amendment right to effective assistance of counsel.@[22] After Wilson, an appellate lawyer need not prepare a petition for discretionary review for his client, nor even advise him of the merits or advisability of seeking such review, in order to render constitutionally sufficient assistance of counsel. But he must not neglect to timely inform his client that he has the right to seek such review, or in any way obstruct his client from doing so, by omission or commission.

Most recently, in Ex parte Crow,[23] we held that the failure of appellate counsel to follow the requirements of Wilson will be measured by a Sixth Amendment standard for prejudice that is more Alimited@ than the ordinary standard that Strickland v. Washington calls for.[24] Errors subject to such a Alimited@ analysis for prejudice, we said, Aare rare, but include deficient conduct that results in the deprivation of an entire judicial proceeding, such as an appeal.@[25] The appellant need not show that the proceeding that counsel=s ineffectiveness deprived him of would have resulted in a favorable outcome; he need only show that he was deprived of that proceeding and that he would have availed himself of the proceeding had his counsel=s conduct not caused a forfeiture.[26] We applied this Alimited@ prejudice requirement to the failure of appellate counsel to inform the applicant of his right to pursue a petition for discretionary review, noting that although an appellant has no right to discretionary review, he has an absolute right to Aattempt to persuade us to exercise our discretion.@[27]

III. Analysis

We fail to perceive any principled reason that our holding in Wilson should not apply equally to an appellant whose attorney files an Anders brief. As our opinion in Crow recognized, the harm that occurs from the failure to timely inform the appellant of his right to file a petition for discretionary review is that he is deprived of the benefit of an entire proceeding, or at least of the opportunity to exercise his unfettered right to Aattempt to persuade us to exercise our discretion.@ The appellant whose attorney files an Anders brief and then fails to alert his client to his client=s right to follow up with a petition for discretionary review is no less deprived of that opportunity than is the appellant whose lawyer has filed an ordinary appellate brief.[28] It is important to note in this context that, as we have acknowledged before, attorneys who file Anders briefs are not always correct that there is no merit to an appeal.[29]

The State argues, however, that the harm that accrues to an appellant who is denied his right to petition for discretionary review after a court of appeals has confirmed that his appeal is indeed frivolous, as here, is negligible, and should be measured against the ordinary prejudice prong of Strickland. After all, how good can his chances be of persuading this Court that his petition for discretionary review deserves our attention? For this proposition the State cites the opinion of the United States Supreme Court in Smith v. Robbins.[30] We do not believe Smith ultimately supports the State=s argument.

In Smith v. Robbins the Supreme Court held that the particular procedural mechanism that it had articulated in its opinion thirty-three years earlier in Anders was precatory rather than mandatory, and that the modified procedural mechanism now in place in California is adequate to preserve Robbins=s constitutional right to counsel on appeal.[31] That being the case, the Court held, Robbins was not wholly deprived of his right to counsel on appeal, and any complaint he had about a deficiency in his appellate attorney=s representation would be subject to an ordinary Strickland analysis, including a full-blown analysis for prejudice.[32] In the instant cause, by contrast, appellate counsel=s failure to inform the applicant of his right to pursue a petition for discretionary review did deprive him of an entire proceeding.

When we held in Crow and in Johnson v. State, upon which Crow relied, that a Alimited@ prejudice analysis will apply whenever appellate counsel=s deficiency causes an appellant to lose his opportunity to petition this Court for discretionary review, we did not mention Smith v. Robbins. But we did rely heavily upon a Supreme Court decision that was decided barely a month after Smith v. Robbins.[33] In Roe v. Flores-Ortega,[34] the Supreme Court held that Awhen [appellate] counsel=s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.@[35] All an appellant need show, then, to establish prejudice for purposes of a Sixth Amendment claim of ineffectiveness of appellate counsel that wholly deprived him of an appeal, is that he would indeed have pursued that appeal. He need not also show Asome likelihood of success on appeal.@[36]

We derived our rationale in Johnson/Crow for applying a Alimited@ prejudice analysis largely from the Supreme Court=s opinion in Roe v. Flores-Ortega and its antecedents. That rationale applies just as forcefully in the Anders context as in any other. The applicant in this cause was wholly deprived of his opportunity to convince this Court that his appeal was not frivolous after all, or that his constitutional right to counsel was somehow compromised when (or in the particular way that) his appellate attorney filed an Anders brief. We therefore reject the State=s contention that the standard Strickland prejudice-prong analysis ought to apply.[37] All that the applicant need establish in the way of a showing of prejudice is that he would in fact have sought a petition for discretionary review, had he been timely informed by his appellate counsel of his right to do so.

IV. Application of Law to Fact

The applicant filed a pro se brief in the court of appeals, once he was informed by his appellate counsel that counsel would be filing an Anders brief. This strongly militates in favor of a finding that the applicant would in fact have proceeded further to file a pro se petition for discretionary review as well, just as he alleges.[38] The only conceivable contrary indication is the letter that appellate counsel wrote to the applicant, Atelling him that his better avenue would be to pursue a writ of habeas corpus rather than further direct appeal since the record presented was inadequate to demonstrate any error on direct appeal.@[39] But we do not regard the advice of counsel that the chances of success in some unspecified further Adirect appeal@ would be Afairly slim@[40] to constitute overriding evidence of the applicant=s intent. After all, appellate counsel=s opinion that the applicant=s initial appeal was frivolous did not dissuade the applicant from filing his pro se brief in the court of appeals. Therefore, as in Crow, we hold that the Aapplicant=s allegations are sufficient to prove that he would have filed a PDR if he had been informed in accordance with Wilson=s dictates.@[41] Accordingly, the applicant is granted leave to file an out-of-time petition for discretionary review. Should the applicant desire to seek discretionary review, he must take affirmative steps to see that his petition is filed in the court of appeals within thirty days after the issuance of the mandate of this Court in this cause.

Delivered: September 13, 2006

Publish

[1]

Tex. Code Crim. Pro. art. 11.07.

[2]

956 S.W.2d 25 (Tex. Crim. App. 1997).

[3]

Owens v. State, No. 10-02-00124-CR, 2003 Tex. App. Lexis 5334 (Tex. App.CWaco 2003) (not designated for publication).

[4]

The applicant also claimed that (1) the jury that convicted him was unconstitutionally selected and empaneled, (2) a juror who was empaneled engaged in misconduct, (3) his trial counsel was ineffective, and (4) prosecutors in the case engaged in misconduct.

[5]

Sic passim.

[6]

633 S.W.2d 526 (Tex. Crim. App. 1982).

[7]

Id., at 527.

[8]

Ibid.

[9]

Ibid.

[10]

Id., at 528 n.4.

[11]

Ibid.

[12]

891 S.W.2d 941 (Tex. Crim. App. 1995) (opinion denying State=s motion for rehearing).

[13]

Id., at 944.

[14]

Ibid.

[15]

Ibid., citing Strickland v. Washington, 466 U.S. 668 (1984).

[16]

Ibid.

[17]

Jarrett v. State, 891 S.W.2d 935, at 940 (Tex. Crim. App. 1994) (opinion on original submission).

[18]

956 S.W.2d 25.

[19]

Id., at 27.

[20]

Id., at 26.

[21]

Id., 27.

[22]

Id., at 26.

[23]

180 S.W.3d 135 (Tex. Crim. App. 2005).

[24]

466 U.S. 668 (1984).

[25]

180 S.W.3d., at 137-38. See also, Johnson v. State, 169 S.W.3d 223, at 231-232, 235-236 (Tex. Crim. App. 2005).

[26]

Id., at 138.

[27]

Ibid. See Tex. Code Crim. Proc. art. 44.45(b)(1); Tex.R.App.Proc. 66.1

[28]

In his concurrence, Judge Womack argues that A[t]he principled reason that the holding in Wilson should not apply when counsel files an Anders brief is that such an attorney must sever the attorney-client relationship.@ There is no particular reason that counsel filing an Anders brief cannot alert his client to the client=s right to file a petition for discretionary review at the same time that he informs the client of his rights to file a pro se appellate brief, and to review the appellate record in preparation of such a pro se brief. See, e.g., Johnson v. State, 885 S.W.2d 641 (Tex. App. - Waco 1995, pet. ref=d) (appellate counsel who files Anders brief has three Aeducational burdens@ with respect to his client: provide client with copy of motion and brief, inform client of his right to file pro se brief, and also inform client of his right to access to appellate record). Appellate counsel should simply add to the list of Aeducational burdens@ a duty to advise his client of the client=s pro se right to seek discretionary review as part of the process of filing an Anders brief and moving to withdraw from representation of the client.

[29]

See Getts v. State, 155 S.W.3d 153 (Tex. Crim. App. 2005).

[30]

528 U.S. 259 (2000).

[31]

Id., U.S. at 272-276.

[32]

Id., U.S. at 278-289.

[33]

See Johnson v. State, supra, at 231; Ex parte Crow, supra, at 137-138.

[34]

528 U.S. 470 (2000).

[35]

Id., U.S. at 484. See also, Rodriguez v. United States, 395 U.S. 327, at 330 (1969).

[36]

Rodriguez v. United States, supra, U.S. at 330.

[37]

To be fair, we note that the State filed its supplemental brief in this cause before we issued our opinions in both Johnson and Crow.

[38]

In both his form writ application, and in his memorandum in support of his application, the applicant simply alleged that his appellate counsel was ineffective for failing to notify him of his right to seek discretionary review. In neither did he claim that, had he been timely so informed, he would have actually filed a timely pro se petition. Nor did he pray for leave to file an out-of-time petition for discretionary review. However, after this Court remanded the cause for a determination of indigency, appointment of counsel, and further briefing, the applicant=s court-appointed writ attorney filed a supplement to the writ application in which he expressly alleged that the applicant Awould have filed a petition for discretionary review if he had been given the opportunity and allowed this Honorable Court to determine if his petition for discretionary review had merit.@ Therefore, we conclude that the applicant has pled facts sufficient to establish the Alimited@ prejudice requirement of Crow.



The dissent would have us deny relief because the supplemental writ is not verified. But the dissent concedes that such a requirement is not jurisdictional. The dissent believes relief should be denied Awhere the record does not otherwise substantiate the sworn allegation.@ Slip op. at 1-2. We think the fact that the applicant persisted in filing a pro se appellate brief in the wake of an Anders brief from his attorney is enough to substantiate his unsworn allegation that he would also file a pro se petition for discretionary review, given the opportunity. In any event, having filed and set the cause and returned it to the trial court for appointment of counsel and additional briefing, we are loathe to deny relief, only to have the applicant face a potential bar to re-raising the issue in a subsequent writ under Article 11.07, Section 4 of the Code of Criminal Procedure.

[39]

State=s Supplemental Brief, at 8.

[40]

See appellate counsel=s letter, quoted at page 3, ante.

[41]

180 S.W.3d at 139.

Jesus~sent to save us~

that the pursuit of perfection is important, even if the attainment of it impossible, see also Theosis. Like many

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Expounding of the Law
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Major events in Jesus's life in the Gospels

* Nativity
* Baptism
* Temptation
* Ministry
* Commission of Disciples & Apostles
* Sermon on the Mount
* Miracles
* Transfiguration
* Entering Jerusalem
* Temple Incident
* The Fig Tree
* Great Commandment
* Anointing
* Last Supper
* Promise of the Paraclete
* Arrest
* Before the High Priest
* Before Pilate
* Crucifixion
* Entombment
* Empty Tomb
* Resurrection Appearances
* Great Commission
* Ascension
* Second Coming Prophecy

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The Expounding of the Law (KJV:Matthew 5:17-48), sometimes called the Antithesis of the Law, is a less well known but highly structured ("Ye have heard ... But I say unto you") part of the Sermon on the Mount, following both the famed Beatitudes and the metaphors of salt and light. Rather than literal antitheses, it is essentially a reinterpretation of Mosaic Law, in particular the Ten Commandments. Jesus makes this clear in verse 17: "Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them." The teachings themselves are not literal antitheses to the law. Salt and light was a common nickname for the Mosaic Law, and hence the metaphors of salt and light form a sort of introduction to the expositions.

Despite being less commonly known, the expounding is at the core of the argument about the relationship between the views attributed to Jesus (or the Gospel or Grace), and those attributed to Moses (or the Mosaic Law), and hence how the relationship between the New Testament and Old Testament should be interpreted, including whether either the extreme of antinomianism or that of legalism has any validity. This issue would have been a central one to the Jewish Christians, a group that the Gospel of Matthew is widely believed to have been directed at, or written by, as the Jewish Christians would have accused other Early Christian groups like the Pauline Christians, followers of Simon Magus, Gnostics, Marcionites, Montanists, and Manichaeists, of abandoning Mosaic customs, as for example in the Acts 15 record of the Council of Jerusalem or 6:13-14, 18:13, 21:21, 21:28.
Contents
[hide]

* 1 Adherence to the Law
* 2 Antithesis of the Law
* 3 Specialised focuses
o 3.1 Anger
o 3.2 Adultery
o 3.3 Divorce
o 3.4 Oaths
o 3.5 Retaliation
o 3.6 Love for enemies
* 4 Notes
* 5 See also
* 6 References
* 7 External links

[edit] Adherence to the Law
The Ten Commandments on a monument on the grounds of the Texas State Capitol
The Ten Commandments on a monument on the grounds of the Texas State Capitol

See also: Old Testament#Christian view of the Law

Matthew 5:17: "the law, or the prophets: I am not come to destroy, but to fulfil" lies at the heart of how different Christian groups view the Mosaic law as there are a wide number of interpretations of what is meant by fulfil. The word fulfil (in Greek πληρῶσαι: Strong's G4137, Liddell & Scott) is interpreted as meaning any of the following: establish, confirm, validate, complete, actualise, properly explain, accomplish, or obey. In contrast, Marcion's version of Luke 23:2[1] states: "We found this fellow perverting the nation and destroying the law and the prophets." See also Ephesians 2:15.

Some argue that Jesus rejects some of the accepted tenets of Mosaic law, such as the understanding of sabbath, divorce laws, dietary laws, and Biblical festival days (such as Passover (Christian holiday)), while accepting others, and presents a New Covenant, doing so particularly by the antitheses. In contrast, E. P. Sanders in his 1985 book Jesus and Judaism, argued that, in spite of denunciations of Pharisees attributed to Jesus in the Gospels, no substantial points of opposition could be found, especially since according to the Gospels Jesus did not transgress any part of Mosaic law, did not oppose or reject the law itself, and that the disciples continued to keep it: for example the Acts of the Apostles recounts that they continued to worship in Herod's Temple.[1]
Part of the series on
Jewish Christians

Figures
Jesus
John the Baptist
Simon Peter
Pillars of the Church
Twelve Apostles
James the Just
Simeon of Jerusalem
Jude
Paul of Tarsus
Desposyni
Patriarchs of Jerusalem
Symmachus the Ebionite

Ancient sects
Cerinthians
Ebionites
Elcesaites
Nasoraeans
Nazarenes
Nazoraeans

Modern sects
Ebionite Jewish Community
Messianic Jews

Adversity
Antinomianism
Christian anti-semitism
Bar Kokhba Revolt
Aelia Capitolina
Emperor Constantine

Writings
Clementine literature
Didache
Gospel of Matthew
Epistle of James
Gospel of the Ebionites
Gospel of the Hebrews
Gospel of the Nazoraeans
Liturgy of St James

Issues
Aramaic of Jesus
Aramaic name of Jesus
Background of Jesus
Christian Torah-submission
Council of Jerusalem
Early Christianity
Expounding of the Law
Sabbath
Quartodecimanism
Sermon on the Mount
Seven Laws of Noah

Pejoratives
Judaizers
Legalists
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According to Augustine of Hippo, Jesus expanded the law but did not replace it. Others used analogy to explain this notion: Chrysostom used the analogy of a race saying that Jesus had added extra distance for the Christians to run, but the beginning remained the same; Theophylact of Bulgaria used the image of an artist colouring in an outline, and Thomas Aquinas saw it as how a tree still contains the seed. This view became the accepted Roman Catholic position, but was challenged in the Protestant reformation, with leading Protestants such as Martin Luther, John Calvin, and Huldrych Zwingli rejecting the idea Jesus had added to the Law, and instead arguing that Jesus only illustrated the true Law that had always existed, but that the Law had been badly understood by the Pharisees and other Jewish leaders. The Anabaptists took the opposite view and felt that Jesus had greatly reformed the Law, and rejected anything that the Bible doesn't mention him as having confirmed.

Matthew 5:18 states that "Till heaven and earth pass, one jot or one tittle shall in no wise pass from the law, till all be fulfilled". Jot is the King James Version's translation of iota, the smallest letter in the Greek alphabet, as the parallel letter yodh (י) is the smallest in the Aramaic alphabet. Tittle, the KJV translation of κερεία (a word which literally means horn), is a small mark of some sort, generally considered by scholars to refer to minor projections (horns) that differentiate certain letters, such as hooks in Aramaic - ב versus כ for example. Hence the phrase refers to even the tiniest minutiae being unaltered (see also Deut 4:2,12:32), and it is this meaning that not one iota, a common English phrase deriving from the statement, has taken. Some view the statement as eschatological, regarding that "till heaven and earth pass" means that Mosaic law would be superseded in the end times, though most view it simply as an idiom for the inconceivable. Likewise "till all be fulfilled" is somewhat debated, with some viewing it as a reference to end times (i.e., "fulfilled" having the same meaning as "heaven and earth pass"), others as a reference to such a time as all of Mosaic law is completely adhered to, and others still that it means that the law would only last until a messiah arrives, i.e. that the time had arrived with Jesus' existence and hence the law is superseded already. Many view the last interpretation as somewhat doubtful, since it is unlikely that Jesus would state till if it had already occurred, or would contradict his prior statement that heaven and earth must first pass before the law does. As for "till all be fulfilled", it is widely believed that Jesus has not yet fulfilled all Messianic prophecy (such as the Resurrection of the dead, Last Judgment and establishment of the Kingdom of God) but that he will in his Second Coming. An exception to this belief is Preterism#Full Preterism. A parallel to this verse is found in Luke 16:17.

Matthew 5:19 condemns those who preach the commandments but do not uphold them, i.e. people that today we would refer to as hypocrites, see also Cafeteria Christianity. Some interpret commandments as referring to the Sermon on the Mount itself, though others think that the text is obviously referring to the Mosaic law, Noahide laws, or to the Ethical decalogue. Some scholars have read this verse as an attack by Matthew on Paul of Tarsus and Pauline Christianity,[citation needed] generally regarded to have placed less importance on Mosaic law, though others claim there is little evidence that the author of Matthew had read Paul's works. Still others believe that Paul stressed the ethical and pedagogical value of the law as a standard for righteous living, rejecting it only as a means of justification. The Catholic Encyclopedia: Judaizers notes: "Paul, on the other hand, not only did not object to the observance of the Mosaic Law, as long as it did not interfere with the liberty of the Gentiles, but he conformed to its prescriptions when occasion required (1 Corinthians 9:20). Thus he shortly after circumcised Timothy (Acts 16:1-3), and he was in the very act of observing the Mosaic ritual when he was arrested at Jerusalem (21:26 sqq.)." See also New Perspective on Paul. A parallel to this verse is found in James 2:10.

Matthew 5:20 subtly condemns the Pharisees: only those who were more righteous than they would enter the "kingdom of heaven". Matthew generally condemns the manner in which the Pharisees adhere to the law (Matthew 23:1-3), portraying it as excessively legalistic, and here is no exception. This begins a pattern, repeated later in the Sermon on the Mount, in the Discourse on ostentation, where outward and public adherence to religious behaviour are condemned as being hollow, in favour of private and internal adherence.

[edit] Antithesis of the Law

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See also: Law and Gospel, Dispensationalism, New Covenant, and The Law of Christ

Christians believe that Jesus is the mediator of the New Covenant (see Hebrews 8:6). His famous sermon from a hill representing Mount Zion is considered by many Christian scholars to be the antitype of the proclamation of the Old Covenant by Moses from Mount Sinai.
Christians believe that Jesus is the mediator of the New Covenant (see Hebrews 8:6). His famous sermon from a hill representing Mount Zion is considered by many Christian scholars to be the antitype of the proclamation of the Old Covenant by Moses from Mount Sinai.

This section of the sermon is sometimes called the Antithesis of the Law (on Antithesis see 1 Timothy 6:20-21, where it is translated "opposing arguments"[2], Strong's G377). As applied to this section of Matthew, the phrase is used in different ways. Some writers use it to mean something like "statements affirming the Law but going beyond it" (Greg Bahnsen, John Murray). Others mean something like "opposed to the false glosses of the Law" (Adam Clarke, John Gill). Still others mean "directly contradicting the Law" (possibly Marcion of Sinope); the second of the four basic tenets of Dispensationalism posits: "A radical distinction between the Law and Grace; that is, they are mutually exclusive ideas."

The 1577 Lutheran Formula of Concord in Article V states: "We believe, teach, and confess that the distinction between the Law and the Gospel is to be maintained in the Church with great diligence. . ."[2] Martin Luther wrote: "Hence, whoever knows well this art of distinguishing between Law and Gospel, him place at the head and call him a doctor of Holy Scripture."[3] Throughout the Lutheran Age of Orthodoxy (1580-1713) this hermeneutical discipline was considered foundational and important by Lutheran theologians. Carl Ferdinand Wilhelm Walther (1811-1887), who was the first (and third) president of the Lutheran Church - Missouri Synod, renewed interest in and attention to this theological skill in his evening lectures at Concordia Seminary, St. Louis 1884-85.[4]

Adolf von Harnack in his 1894 History of Dogma vol. 1, ch. 5, p. 269 states: Marcion "accordingly supposed that it was necessary to make the sharp antitheses of Paul, law and gospel, wrath and grace, works and faith, flesh and spirit, sin and righteousness, death and life, that is the Pauline criticism of the Old Testament religion, the foundation of his religious views, and to refer them to two principles, the righteous and wrathful god of the Old Testament, who is at the same time identical with the creator of the world, and the God of the Gospel, quite unknown before Christ, who is only love and mercy."

Cyrus Scofield in his 1896 Rightly Dividing the Word of Truth, ch. 6 LAW AND GRACE states: "The most obvious and striking division of the Word of truth is that between law and grace. Indeed, these contrasting principles characterize the two most important dispensations: the Jewish and Christian. "For the law was given by Moses, but grace and truth came by Jesus Christ" (John 1:17). ... Law kills; grace makes alive. ... Law says, 'An eye for an eye, and a tooth for a tooth"; grace says, "Resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also." Law says, "Hate thine enemy"; grace says, "Love your enemies, bless them that despitefully use you." Law says, do and live; grace says, believe and live. ... Law stones an adulteress; grace says, "Neither do I condemn thee: go, and sin no more." ... Everywhere the Scriptures present law and grace in sharply contrasted spheres. The mingling of them in much of the current teaching of the day spoils both, for law is robbed of its terror, and grace of its freeness."

According to the 1911 Encyclopædia Britannica article on Antinomians: "a term apparently coined by Luther to stigmatize Johannes Agricola and his following, indicating an interpretation of the antithesis between law and gospel, recurrent from the earliest times." And from the article on Marcion: "It may be said that in the 2nd century only one Christian—Marcion—took the trouble to understand Paul; but it must be added that he misunderstood him. The profound reflections of the apostle on the radical antithesis of law and gospel, works and faith, were not appreciated in the 2nd century. Marcion alone perceived their decisive religious importance, and with them confronted the legalizing, and in this sense judaizing, tendencies of his Christian contemporaries. But the Pauline ideas lost their truth under his treatment; for, when it is denied that the God of redemption is at the same time the almighty Lord of Heaven and Earth, the gospel is turned upside down."

Paul believed Jesus fulfilled his relationship with the Law of Moses at his death. (Romans 7:4, Col 2:14, Ephesians 2:14-17, Galatians 2:19-20) The death of a spouse terminates the marriage relationship and makes the surviving spouse free to have a relationship with someone else. The death of Jesus made him free to have a relationship with his bride or the church. (Ephesians 5:28-32). Paul believed Christians participated in the death of Christ and in his new life by baptism. (Romans 6) See also Antinomianism in the New Testament.

[edit] Specialised focuses

As well as a more general discussion about adherence to the law, the expositions individually cover the following aspects in greater detail:

* Anger (Matthew 5:21-26, Luke 12:58-59)
* Adultery (Matthew 5:27-30, Mark 9:43-47)
* Divorce (Matthew 5:31-32,19:7-9, Mark 10:11-12, Luke 16:18, 1 Corinthians 7:10-11,7:26-28)
* Oaths (Matthew 5:33-37, James 5:12)
* Retaliation (Matthew 5:38-42, Luke 6:29-31,6:34-35)
* Love for Enemies (Matthew 5:43-48, Luke 6:27-28,6:32-33,6:36)

Each of these specialised sections begins with a scriptural quotation that indicates how the law officially regards each of these issues, and then goes on to, depending on one's interpretation, either extend the law's commandment to its most radical extent, or make a radical assertion opposing it. Though sometimes not as radical, Jewish sentiment in the period was much more in keeping with the exposition than the law itself, partly due to the influence of Hellenism, and so although parts of the exposition may seem quite radical in respect to the law itself, it should be understood that in many cases the exposition simply describes popular sentiment of the time. In addition, as the Jewish Encyclopedia article on Jesus notes: "Jesus, however, does not appear to have taken into account the fact that the Halakah was at this period just becoming crystallized, and that much variation existed as to its definite form; the disputes of the Bet Hillel and Bet Shammai were occurring about the time of his maturity."

[edit] Anger

The first exposition is on the subject of murder. Beginning by quoting the commandment thou shalt not kill (Deuteronomy 5:17), Matthew describes Jesus as going on to condemn the anger which lead to it as being just as bad. This view is not particularly new to Jesus, appearing in the Old Testament at places such as Ecclesiastes and Ecclesiasticus, as well as in the Slavonic Enoch, Pesahim, and Nedraim. Jesus is also described as condemning people who insult each other, specifically identifying the insult of calling someone a Raca. Scholars seem divided on how grievous an insult it was - for example Hill feels it was very grievous while France thinks it minor.

What Raca means is unknown though there have been frequent attempts to explain it, particularly in the context of fool, the next insult to be mentioned. Despite condemning the use of the term fool, according to Matthew, Jesus himself used it to deride the Pharisees (Matthew 23:17, see also Woes of the Pharisees), see also Luke 11:40, 24:25, Romans 1:21-22, 1 Cor 15:36, Gal 3:1. The most common view is that Raca is a reference to the Aramaic word reka (see also Aramaic of Jesus), which literally means empty one, probably referring to empty headed, or foolish. The word translated as fool is Moros which has a similar meaning to the Aramaic reka, but it can also be used to mean godless, and so was a much stronger term. Some writers have argued that raca can mean effeminate and moros referring to an homosexual aggressor, and so Jesus could here be seen to be condemning homophobia,[citation needed] although like much of modern western culture, homophobic insults are likely to have often been used generally rather than only to specifically attack homosexuals.[citation needed]

Those that are angry with their brother are then said in Matthew to be subject to judgement, sent to the council, which some consider a reference to a sanhedrin,[5] for using the insult of Raca, and sent to Gehenna for using the insult of moros. Gehenna the rubbish heap south of Jerusalem which was permanently aflame, and had in the past been the place of cremation for human sacrifice. Despite the vivid unpleasantness of this, traditionally scholars have read this as only a metaphorical reference to damnation to Hell, though other scholars see the literal reading - being thrown into the rubbish heap south of Jerusalem - as the accurate one. Early manuscripts of Matthew are divided between some that state it is anger without cause that is being condemned, and those that state that all anger is condemned, with most modern scholars feeling that without cause was an emendation added by a later scribe (see Lectio difficilior potior).

The exposition then goes on to state that even if one is in the middle of making the korban sacrifice (see also Korbanas), whenever one realises there is a dispute with one's brother, it is better to immediately stop what one is doing and try to resolve the dispute. Although the theme of asserting that "worship devoid of moral life is useless" occurs throughout the Old Testament, several scholars see Matthew here as attacking the overly ritualised Pharisees, with those scholars, for example Schweizer, thinking that the Pharisees believed sacrifice should not be interrupted. That Matthew here mentions the korban, which came to a halt in 70AD when the Temple was destroyed (Siege of Jerusalem (70)), is taken by a few scholars, like Albright and Mann, as evidence that Matthew was written before that date.

The expositions finally culminate with what could easily be seen as very practical advice to reconcile with enemies quickly, before the enemy causes the issue to be brought before a judge, since being placed into jail will require you to buy yourself out of jail, not even leaving you with a penny.[citation needed] This piece of advice also appears in Luke 12:58-59, causing those who accept the Q hpothesis to suggest that it originates in |Q, though the words that are usually translated as penny differ between Luke and Matthew, with Matthew referring to a quadrans and Luke to a mite, which was worth half a quadrans. Luke gives the text a much more eschatalogical context, implying it refers to the Last Judgement, and so most Christians interpret Matthew the same way, some using it to argue for the existence of purgatory. Fundamentalists, however, have a tendency to be uncomfortable with the soteriology that this implies - that good behaviour is sufficient to avoid punishment - and so those such as Albright claim that some material is likely to be missing from this part of Matthew.

[edit] Adultery

The second exposition is on the subject of adultery. Firstly it quotes the commandment in the ethical decalogue at (Exodus 20:14) about adultery, and then goes on to state that looking at a woman in lust is equal to the act of adultery itself. This is often interpreted as Jesus expanding on the requirements of Mosaic law, but not rejecting it, and similar ideas were anciently expressed in T. Issachar and Tractate Kalla.

When accompanied by a noun or pronoun in the genitive case or by a possessive adjective or when specified in some other way, the word "γυνή", which in itself means simply "a woman",[6] is used to refer to a "wife". In this context there is no such specification of the word "γυνή". In any case, it would be quite unwarranted to conclude, perhaps on the basis of the reference to committing adultery, that Jesus was declaring that lustful looks at others than married women were permitted.

The discussion in Matthew continues with two now well known phrases that are also to a degree present in Mark 9:47,9:43 and Matthew 18:8-9:

* If thy right eye offend thee, pluck it out
* If thy right hand offend thee, cut it off

Rather than if...offend thee, the Greek text is literally if...causes you to stumble, which while a common metaphor for sin, also acts as a joke since plucking out one's eye will result in one stumbling about. No major Christian denomination has ever taken these commands literally, although Origen castrated himself in order to avoid sexual temptation. That almost everyone views them as deliberate hyperbole has led some commentators to see parts of the other expositions in the Sermon on the Mount as also being hyperbole.

The link between the right hand and the discussion of adultery is somewhat unclear, although in Jewish writings of the time it was common to a triple structure, XYZ eye ABC XYZ hand ABC XYZ foot ABC, seen in Mark 9:43-48 and Matthew 18:8-9. That the hand appears here but not the foot is felt by Hill to be a deliberate reference to theft, which at the time adultery was seen as being a form of. An alternative view is that the mention of a hand linked to lust is a reference to masturbation - though in a Semitic culture the left hand, rather than the right, would be mentioned in that context - and many who criticise masturbation use this verse to condemn it, making this one of the Bible phrases most often cited for that purpose. In the Babylonian Talmud there are similar statements about masturbation and mention is made of cutting off the hand and suffering bodily harm rather than going to the pit of destruction (Tractate Niddah, fol. 13b). A third view is to see the hand reference as a connecting link to the next exposition, which is about divorce, as a metaphor for separation from a sinful spouse.

Jesus is portrayed in Matthew as making these statements because he considers it better that one cut oneself off from sin so as not to condemn the remainder of oneself to Gehenna. There is much debate as to quite in what way Gehenna is being referred to - whether Jesus was meant to be talking about a physical valley of fire, an afterlife of damnation, or whether the reference is eschatalogical. That the text refers to a whole body being thrown to Gehenna is regarded by some as implying that everyone, even the wicked, would have a full bodily resurrection in the end times, which is counter to the standard Protestant understanding of only the worthy being resurrected.

[edit] Divorce

The third exposition, sometimes considered a continuation of the prior one about adultery, is on divorce, and is comparatively short. It begins with a reference to Deuteronomy 24:1, requiring a man who dismisses his wife for "some indecency" he finds in her to give her a formal written divorce certificate. However, the exposition describes Jesus as condemning anyone who, except in the event of porneia, divorces his wife and thus "makes her an adulteress", adding: "whoever marries a divorced woman commits adultery."

Porneia (πορνεία)[3], the Greek word from which we derive the term pornography, literally means fornication with a prostitute (πόρνη), but was used to indicate unchaste conduct generally. Accordingly, some claim it should be translated here as "adultery" (a view accepted in perhaps no English Bible translation: the King James Version and derivatives such as the American Standard Version have "fornication"; the Revised Standard Version has "unchastity" and the New International Version "marital unfaithfulness"; the NAB has "unlawful marriage"; see also Council of Jerusalem). At the time of Jesus, the majority view on Deuteronomy 24:1 was that of Hillel the Elder, who allowed divorce under a wide range of circumstances, even as minor as a wife burning dinner, while the minority opinion followed Shammai, who argued that only adultery could be grounds for divorce.

The house of Shammai say, a man may not put away his wife, unless he finds some uncleanness in her, according to Deu. 24:1. The house of Hillel say, if she should spoil his food, (that is, as Jarchi and Bartenora explain it, burns it either at the fire, or with salt, i.e. over-roasts or over-salts it,) who appeal also to Deu. 24:1. R. Akiba says, if he finds another more beautiful than her, as it is said, Deu. 24:1 "and it come to pass that she find no favour in his eyes."[7]

Though Rabbinic Judaism abandoned Shammai's view, Protestant and Eastern Orthodox Churches have traditionally read porneia as adultery. Some scholars believe Jesus was endorsing Shammai's view. Some claim that, under the liberal divorce policy of Hillel, men had been casually divorcing their wives on losing interest in them, thus deeply injuring them, and that Jesus was here defending the rights of downtrodden wives. Other reject this claim on the grounds that elaborate prenuptial agreements were negotiated prior to every marriage, invariably including steep financial penalties, known as ketubah, that a divorcing husband had to pay his wife, guaranteeing her financial security. On the other hand, such a prenuptial contract did nothing for her social and religious status (see also: social alienation and social stigma), which were very important aspects of life in a "shame-based" society such as ancient Israel.[8]

In the same verse, the specific term for "adultery", moicheia (μοιχεία) is used, in its verbal form (μοιχευθῆναι), immediately after the term porneia. Accordingly, some scholars conclude that porneia refers to something other than adultery, such as concubinage (a relationship between the man and the woman he puts away that is not that of a valid marriage but only cohabitation). They point to the quaintness, to say the least, of the interpretation, "He who dismisses his wife, except for adultery, makes her commit adultery," i.e. the divorced wife then commits adultery unless she has already committed adultery. And, in view of the fact that Greek has no specific word for "wife" — the word γυνή ("woman"), when specified by the context, is used for someone's "wife", as mujer in Spanish — they see as much more satisfactory the interpretation according to which the verse reads: "Every one who sends away his woman — except in the case of concubinage — makes her commit adultery."

In line with this view, some scholars read porneia as referring specifically to marriages that, while perhaps permissible under pagan religions, were illegal under Jewish and Christian law, such as those between blood relations - in 1 Corinthians 5:1, Paul used the word porneia of a relationship he wanted ended between a man and a woman who had been the man's presumably dead father's wife - or mixed marriages with those of a different religion, while others have proposed that the phrase about porneia is in fact a later addition to the text, particularly since it is not present in the parallel passages of Mark and Luke.

Both Mark 10:11-12 ("Whoever divorces his wife and marries another, commits adultery against her; and if she divorces her husband and marries another, she commits adultery") and Luke 16:18 ("Every one who divorces his wife and marries another commits adultery, and he who marries a woman divorced from her husband commits adultery") present Jesus as making no exception to his condemnation of divorce with a view to remarriage.

Some believe that Jesus is using the same kind of formula he used to condemn the Scribes and Pharisees elsewhere (Mark 7:6-13; Matt. 15:14, 23:15ff), an argument that takes the form: "You claim you are doing a lawful thing, but by doing it you break the law or cause others to." John Gill explained the sense as follows: "[causeth her to commit adultery;] that is, as much as in him lies: should she commit it, he is the cause of it, by exposing her, through a rejection of her, to the sinful embraces of others". This interpretation seems to support the idea that Jesus is condemning divorce absolutely.

In (the undisputedly authentic) 1 Corinthians, Paul of Tarsus, writing in about the middle of the first century, likewise quotes Jesus as forbidding divorce without any exception: "To the married I give charge, not I but the Lord, that the wife should not separate from her husband (but if she does, let her remain single or else be reconciled to her husband) — and that the husband should not divorce his wife" (7:10-11). However, "to the rest" Paul, on his own authority ("I say, not the Lord"), gives the rule (later referred to as the Pauline privilege) that someone who on becoming a Christian is abandoned by a non-Christian spouse is not tied to that spouse (7:12-16). Many interpreters have held that Paul has two different groups in mind (viz., in the first instance, "the [legally] married", and in the second, "the rest [in mixed marriages]"), so that Paul's sanction does not contradict that of "the Lord," but expands on it to meet an exigent situation.

On the other hand, others have proposed that the term porneia here relates to spiritual fornication, i.e. participating in the polytheistic religion of the Middle East, since porneia was in the Old Testament (LXX) used of such participation (e.g. Ex 34:15-16, Lv 17:7, Ezk 16:26, 29, etc.). Another view is that the exception clause is a comment indicating that adultery automatically led to divorce under the law of the time, a law Jesus may perhaps have disagreed with. Similarly, some have argued that the other Synoptic Gospels lacked the porneia exception as something totally obvious to their readers.[citation needed]

In Jesus' time, capital punishment was not actually imposed for adultery, but was technically prescribed by Mosaic Law (cf. John 8:5), and so Martin Luther argued that, since in the eyes of God an adulterer was dead, the spouse was free to remarry. The view that adultery was a valid reason for divorce became the majority Protestant position. Some Protestants even took broader views, with Zwingli and Bullinger both reading porneia to refer to all manner of marital immorality such as spousal abuse, and abandonment. Nowadays, while the porneia clause in Matthew has significance for individual Protestants, many Protestant Churches simply leave questions of divorce and remarriage to civil law, without taking any doctrinal stand on the question.[4]

From an early stage, the Roman Catholic Church clearly excluded divorce. Saint Augustine of Hippo stated in Of the Good of Marriage (§7): "[T]he compact of marriage is not done away by divorce intervening; so that they continue wedded persons one to another, even after separation; and commit adultery with those with whom they shall be joined, even after their own divorce, either the woman with a man, or the man with a woman."[5]

There were disputes about what constitutes a valid and indissoluble marriage, with some claiming that what constitutes marriage is the contract entered into by free and knowing consent, and others saying that carnal union ("two becoming one flesh", cf. Matthew 19:5) is what is essential. By medieval times it was accepted that marriage, though constituted by consent alone, becomes indissoluble only when completed or consummated with the second element, so that only death can dissolve a valid, consummated, sacramental marriage. If a presumed marriage is proved to have been invalid from the start, the Church issues an annulment or declaration of nullity at the request of at least one of the parties.[6] It also grants petitions for dissolution of a marriage shown not to have been consummated and, in certain circumstances, of a non-sacramental marriage.

[edit] Oaths

The third/fourth exposition is about oaths. While Gundry feels that this follows the discussion of divorce since Deuteronomy discusses these things one after another, though in reverse order, other scholars feel that it is simply a natural progression, as one of the major legal issues of the day was over marriage vows.

The exposition opens with a quote from the Septuagint translation of the Old Testament, the first half of which appears to come from Leviticus 19:12 and the second half from Psalms 50:14. However, Psalm 50:14 is about vows, not oaths; Jewish scholars made a distinction between the two concepts. Schweizer feels that the wording implies that Jesus is only discussing oaths associated with vows, and that he never speaks against the oaths of innocence or truthfulness that were not linked with vows. While the text literally condemns perjury, it can also mean break an oath, and some individuals translate it much less restrictively as do not make vows rashly.

After having made the quote, Matthew presents Jesus as extracting from it the rule never swear and then moves directly to examples, quoted from the Old Testament:

* Not to swear by heaven (Isaiah 66:1) - at the time one view held that, as expressed in M. Shebuoth, while oaths to God were binding, oaths to other subjects, such as heaven, were not. Schweizer feels that Jesus is here indicating that swearing by heaven is swearing by God with heaven being God's throne.
* Not to swear by the earth (quoted from Isaiah 66:1) - Schweizer feels that Jesus is here indicating that swearing by earth is swearing by God with earth being God's foot stool
* Not to swear by Jerusalem the city of the great King (quoted from Psalms 48:2) - this could be linked to the practice of turning toward Jerusalem when swearing an oath. The term great king may either be a reference to David or to God, with Christians usually interpreting it as the latter. Schweizer feels that Jesus is here indicating that swearing by Jerusalem is the same as swearing by God, owing to it being God's city.
* Not to swear by your head, because you can't make one hair white or black - this does not, according to Schweizer, take into account hair dye, which was a common and well known practice even in that time.

Very few Christians interpret this exposition to literally mean that all oaths are prohibited, since in other parts of the Bible oaths are looked upon more favourably. Paul for example is described in 2 Corinthians and Galatians as swearing oaths. Avoiding the literal meaning, most Christian thinkers have concluded that by never swear, Jesus is using hyperbole to emphasise his point or failing to mention exceptions to this rule that would have been implicit to his audience. Thus most Christian churches believe that only false and vain oaths are prohibited, and John Calvin argued that only oaths counter to God are wrong. Several important Christian groups do not however accept such re-interpretations, preferring to uphold what the text actually says; most notably the Quakers and Mennonites firmly reject all oaths, a stance that has led to their persecution by governments that insist on oath taking.

According to Matthew, Jesus then instructs people to only respond with yes, yes; no, no. The exact meaning of this is much disputed, and while one reading is that you should simply always answer with yes or no, as is clearly the view of James 5:12 where this whole exposition is reiterated, the Slavonic Enoch, however, states that a double yes or a double no were themselves forms of oath, and so by this understanding Jesus is not banning all oaths, but outlining an example of an oath that is permissible. Jesus is described as going on to say that whatever is more than this response constitutes something of the evil one, which in other parts of the New Testament are frequently used to refer to the devil, and Schweizer believes that the implication is merely that swearing was evil, many Christians do not see a theological difference. The formula yes, yes; no, no also appears in 2 Cor 1:17. According to Jewish Encyclopedia: New Testament: Misunderstood Passages: "...the sentence, "Let your speech be, Yea, yea; Nay, nay" (Matt. v. 37, R. V.), which is derived from Lev. xix. 36 (Sifra, Ḳedoshim, viii. 7; B. M. 49a; comp. Tos. Soṭah vii. 2; Giṭ. 35a; Num. R. xxii.)..."

[edit] Retaliation

The penultimate exposition partly paralleled in Luke's Sermon on the Plain, is on the subject of punishment. It begins with a quote of the lex talionis - an eye for an eye - which is found in three of the law codes in the pentuateuch (in the Deuteronomic code, Holiness Code, and Covenant Code). Although this principle of retributive punishment dates back at least to the Code of Hammurabi, by the first century AD it had been superseded by a system of fines, and so several scholars here consider that it is the whole principle of retribution which Jesus is here meant to be discussing, rather than just the lex talionis.

Having made the quotation, Matthew goes on to describe Jesus as saying that one should instead turn the other cheek, and superficially appears to state that one should not resist evil at all, even going so far as to give someone your cloak as well when they sue you for your tunic, and when you are compelled to travel one mile one should go so far as to travel two. Though this appears to quite clearly advocate a radical degree of pacifism, many Christians reject this interpretation. According to France, the Greek words translated as don't resist have a far more restricted meaning, and should instead be translated as do not resist by legal means, as this is how Schweizer believes the words are used in Deuteronomy and Isaiah (even though they are different, Hebrew, words in Deuteronomy and Isaiah). Striking on the right cheek refers to a back-handed slap to the face, which throughout the Middle East, both in the first century and today, is one of the highest forms of contempt. According to France the gesture is a grave insult, not a physical attack, and so, again according to France, this would distance the instruction from espousing non-violence.
Appearance of Christ to the People, John 1:36, by Alexander Ivanov, 1837-57. The large figure is John the Baptist, with camel hair tunic and leather belt.
Appearance of Christ to the People, John 1:36, by Alexander Ivanov, 1837-57. The large figure is John the Baptist, with camel hair tunic and leather belt.

To give someone your cloak (a sleeveless coat, likely of heavy wool, see also Himation) was quite a radical thing to do, since at the time, it referred to a blanket, like a poncho, that was used to keep warm in the night. Due to the often cold nights in the region, a cloak was hence necessary for survival to the extent that Jewish law regarded it as "distrainable" (a legal term meaning seizable against unpaid debt), see also Exod 22:26-27, Deut 24:10-13. The tunic (a full-length sleeveless shirt, likely of light cotton or linen, see also Chiton) on the other hand was merely the basic piece of clothing worn on the body. Although most people interpret the instruction from Jesus to give the cloak up to be enforcement of pacifism, France disagrees, and instead sees it as referring to renunciation of property and material possessions. In Luke the situation is somewhat reversed, where highway robbers demand the outer cloak and Jesus is described as insisting that one give up ones tunic as well. Ultimately, the instruction in Luke and Matthew may originate in the tale of Diogenes, a Greek philosopher who is said to have given robbers his tunic as well when they only demanded his cloak.[citation needed][9] The Scholar's Version notes for Luke 6:29: "The coat and shirt are the full-length outer and under garments worn in the ancient world. One who lacked both garments would be nearly nude."

The requirement to go the extra mile specifically refers to the Roman practice of requisitioning individuals to act as a guide or porter, a practice which the Zealots loathed. Thomas Aquinas used this requirement to argue that it is reasonable to follow laws that are unjust (though he also argued that unconscionable laws mustn't be obeyed). After making this requirement, Jesus is described as insisting that one should give to anyone who asks you and not to turn away those who would borrow from you. Most major Christian groups do not advocate the unrestricted level of charity that literal readings would imply, with Luther arguing that the verse is restricted only to those who need assistance, and Calvin stating that generosity is important, but one should never be profligate. Some have interpreted that not turning away those who would borrow is condemnation of usury, particularly since this interpretation is more strongly supported by a similar instruction in the Gospel of Thomas, #95: "[Jesus said], "If you have money, don't lend it at interest. Rather, give [it] to someone from whom you won't get it back." [SV], causing those who accept the Q hypothesis to suggest that it may originate in Q.

[edit] Love for enemies
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The final exposition is on the subject of love. It begins by making a now famous quotation from Leviticus - love thy neighbour as thyself - (Leviticus 19:18). Matthew continues the quote to state that it includes hate thine enemy, which is not actually part of the command in Leviticus, though neighbour was interpreted in the first century to refer to fellow Jews rather than everyone.[citation needed] To hate one's enemies is however a sentiment expressed in some Old Testament verses such as the vengeful Psalms 137:9, and also in some of the rules of the Qumran community, and even in the New Testament such as Luke 14:26, see also But to bring a sword. The Scholar's Version notes on Matthew 5:43: "It may be a reference to the Community Rule of Qumran: "They may love all that He has chosen and hate all that he has rejected.""
Vereschagin's painting Apotheosis of War (1871) came to be admired as one of the earliest artistic expressions of pacifism.
Vereschagin's painting Apotheosis of War (1871) came to be admired as one of the earliest artistic expressions of pacifism.

After having made the quotation, the exposition then goes on to contradict it by instructing people to love thine enemy. Early church thinkers saw this as one of Jesus' most important teachings, but the history of the early church shows that very few church fathers actually lived up to the literal ideal it espouses.[citation needed] By the Middle Ages, the verse had become seen as problematic in regard to war, and so it was re-interpreted so as to only apply to relations between individuals rather than those between nations, countries, faiths, or ideologies.[citation needed] Several later thinkers rejected this view as a blatant attempt to re-write things that one disagreed with rather than accept that it contradicts ones own stance at face value,[citation needed] and Leo Tolstoy specifically read this verse as a rejection of militant nationalism. This does not however mean that those later thinkers approved of the sentiment of the verse, and Nietzsche rejected the command entirely, arguing that love of one's enemies is weakness and dishonesty.

According to the Jewish Encyclopedia: BROTHERLY LOVE: "... Jesus asserted the principle of brotherly love as applied by the liberal school of Hillel to all men. Indeed, the Talmud insists, with reference to Lev. xix. 18, that even the criminal at the time of execution should be treated with tender love (Sanh. 45a). As Schechter in "J. Q. R." x. 11, shows, the expression "Ye have heard . . ." is an inexact translation of the rabbinical formula (שןמע אני), which is only a formal logical interrogation introducing the opposite view as the only correct one: "Ye might deduce from this verse that thou shalt love thy neighbor and hate thine enemy, but I say to you the only correct interpretation is, Love all men, even thine enemies.""

See also Judaism and Christianity#Love.

Love here has a much more restricted sense than the normal English term. Greek considered there to be four quite different forms of love, having a word for each, all of which we now translate as love:

* eros - erotic love
* stergein - brotherly/familial love
* philia - deep affection
* agape - the other kind, its meaning being somewhat disputed

Agape, the word translated as love in the instruction love thine enemy, is referred to some 140 times in the New Testament, and so its meaning is the focus of some debate. That it appears elsewhere in Greek use tends not to influence the arguments. Barclay translates it as continued benevolence, Tertullian viewed it as referring to charity, and ancient philosophers used it in a sense of universal, all encompassing love, like a lust for life, and like philanthropy. This kind of love had a high priority in Early Christianity, and the ritual of the love feast was viewed as one of the most important. Enemies is also a broad term, and it applies to all manner of foes and adversaries, and so several commentators have sought to restrict it only to non-Christians, to make it have the sense that one should love converting non-Christians to Christianity, though this advocation is not supported as its meaning by scholars.

As a motive for acting according to the commandment to love thine enemy, the exposition recommends imitating God rather than groups whom the listeners despised.

God treats both friend and enemy the same. Although in wetter and more northern societies, rain is often viewed as unpleasant, in Mediterranean society it was seen as positive, and so here stating that God rains upon friend and enemy alike would have been interpreted as a positive equality not a negative one.[citation needed] The prominent Rabbi Joshua ben Nehemiah had made similar note of rain's equal treatment of the good and the wicked, and saw it as a sign of God's benevolence.

God's attitude is contrasted with that of the tax collectors (τελῶναι - verse 46 - sometimes translated as publicans) and Gentiles (ἐθνικοί - verse 47 - but some manuscripts have τελῶναι again). The tax collectors referred to were Jews employed by the Romans to collect taxes on their behalf, sometimes even extorting further funds, and consequently were seen by other Jews as traitors, and criminals, much like debt collectors and some bailiffs are today. These were hence viewed as the lowest of the low, and being no better than them was considered a terrible insult, as was being put on the same level as non-Jews. The basic argument of the allegory is that, since even these despised individuals love their friends and family, then if you love only those who are close to you, you are no better than them, and so, in order to stay above them, one should love enemies.

This exposition, and the whole collection of expositions, culminates with the instruction:

Be perfect, just as God is perfect

This is known as the imitatio Dei - the imitation of God - and also appears in Luke's Sermon on the Plain. It originates in the holiness code's fundamental command to be holy because God is holy. There is some debate in Christian circles about what exactly this verse means, since many view being as perfect as God something of a complete impossibility. Some Christians believe that this is deliberate on Jesus' part, that the purpose is not what it seems at first but instead a goal is being set that cannot be reached in order to teach people humility,[citation needed][10] though others interpret it for what it appears to be - that the pursuit of perfection is important, even if the attainment of it impossible, see also Theosis. Like many Protestants, Fowler has proposed that it is merely a limited form of perfection being sought - that Abraham and Noah are referred to as perfect due to their obedience to God, and hence that this imitatio Dei is an instruction to be completely obedient to God. Conversely, other Protestants, such as Barclay, consider that since Greek philosophers used teleios (Liddell & Scott,Strong's G5046) - the word here translated as perfect - to refer to things that fulfilled their function, that the imitatio Dei is an instruction to love (agape), as the preceding discussion implies this is mankind's function. The Scholar's Version translation notes: "To be unstinting in your generosity means to follow all the demands of the Torah without any reduction. See 1 Cor 14:20 where Christians are urged by Paul not to be babies but mature. The same Greek word is used to translate perfect and mature."

[edit] Notes

1. ^ For example, see Acts 3:1; 5:27-42; 21:18-26; 24:5; 24:14; 28:22. See also Romans 3:31.
2. ^ Triglot Concordia, FC Epitome V, (II).1, p. 503ff
3. ^ Martin Luther, Dr. Martin Luthers Sämmtliche Schriften, St. Louis ed. (St. Louis: Concordia Publishing House, N.D.), vol. 9, col. 802.
4. ^ The Proper Distinction Between LAW AND GOSPEL: 39 Evening Lectures, W.H.T. Dau tr., 1897.
5. ^ 5:22NIV, 5:22NAB, 5:22YLT
6. ^ See Liddell and Scott, A Greek-English Lexicon and 1 Thayer's Lexicon
7. ^ Mishna Gittin, 9.10. See: T. Hieros. Gittin, fol. 49.4; Sota, fol. 16.2; Bemidbar Rabba, 9 (fol. 195.2).
8. ^ David deSilva, Honor, Patronage, Kinship and Purity (InterVarsity Press, 2000), p. 36; Bruce Malina and Jerome Neyrey, Portraits of Paul: An Archaeology of Ancient Personality (Westminster, 1996), p. 196.
9. ^ Diogenes the Cynic was said to live naked[citation needed] in a barrel in Athens, though Diogenes Laertius's Lives and Opinions of Eminent Philosophers: Life of Diogenes says he slept in a borrowed cloak which he refused to give up.
10. ^ See also Sermon on the Mount#Interpretation, "Repentance View"

[edit] See also

* The Bible and homosexuality
* Halakah (Jewish law)
* Law and Gospel
* Judaism and Christianity
* Jewish Christians

[edit] References

* Albright, W.F. and C.S. Mann. "Matthew." The Anchor Bible Series. New York: Doubleday & Company, 1971.
* Barclay, William. The Gospel of Matthew: Volume 1 Chapters 1-10. Edinburgh: Saint Andrew Press, 1975.
* France, R.T. The Gospel According to Matthew: an Introduction and Commentary. Leicester: Inter-Varsity, 1985.
* Fowler, Harold. The Gospel of Matthew: Volume One. Joplin: College Press, 1968
* Hill, David. The Gospel of Matthew. Grand Rapids: Eerdmans, 1981
* Instone-Brewer, David. Divorce and Remarriage in the Bible: The Social and Literary Context. Grand Rapids: W.B. Eerdmans, 2002.
* Gundry, Robert H. Matthew a Commentary on his Literary and Theological Art. Grand Rapids: William B. Eerdmans Publishing Company, 1982.
* Johansson, Warren "Whosoever Shall Say To His Brother, Racha." Studies in Homosexuality, Vol XII: Homosexuality and Religion and Philosophy. Ed. Wayne Dynes & Stephen Donaldson. New York & London: Garland, 1992. pp. 212-214
* Jones, Alexander. The Gospel According to St. Matthew. London: Geoffrey Chapman, 1965.
* Kissinger, Warren S. The Sermon on the Mount: A History of Interpretation and Bibliography. Metuchen: Scarecrow Press, 1975.
* Levine, Amy-Jill. "Matthew." Women's Bible Commentary. Carol A. Newsom and Sharon H. Ringe, eds. Louisville: Westminster John Knox Press, 1998.
* Luz, Ulrich. Matthew 1-7: A Commentary. trans. Wilhlem C. Linss. Minneapolis: Augsburg Fortress, 1989.
* McArthur, Harvey King. Understanding the Sermon on the Mount. Westport: Greenwood Press, 1978.
* Morris, Leon. The Gospel According to Matthew. Grand Rapids: William B. Eerdmans, 1992.
* Robinson, B. A. 1996-2005 What the Bible says about homosexuality. Ontario Consultants on Religious Tolerance.
* Sabourin, Leopold. The Gospel According to Matthew. Bombay: St. Paul Publications, 1983.
* Schweizer, Eduard. The Good News According to Matthew. Atlanta: John Knox Press, 1975

[edit] External links

* Calvin's Commentary on Matthew 5:17
* Wesley's Sermon on Matthew 5:17-20
* Biblical Research on Divorce and Remarriage
* Thomas Aquinas: Summa Theologia: Whether charity requires that we should love our enemies?
* Jewish Encyclopedia: Jesus: Attitude Toward the Law
* Jewish Encyclopedia: New Testament - For and Against the Law

Now we know why Marshall Dissented in Strickland v Washington.......no attorney "engaged" unless paid! Even he knew that!

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NUMBER 13-04-00271-CR



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI B EDINBURG



RAUL YDROGO, JR., Appellant,



v.



THE STATE OF TEXAS, Appellee.



On appeal from the 105th District Court of Kleberg County, Texas.



MEMORANDUM OPINION[1]



Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Hinojosa



Appellant, Raul Ydrogo, Jr., pleaded guilty to the offense of aggravated assault. The trial court deferred the adjudication of guilt and placed appellant on community supervision for a term of five years. In 2002, in response to the State=s motion to revoke appellant=s community supervision, the trial court ordered Ydrogo to attend a Substance Abuse Felony Punishment Facility. In 2004, the State filed a second motion to revoke. After appellant pleaded Atrue@ to the allegations contained in the motion, the trial court found that appellant had violated the terms of his community supervision, adjudicated him guilty of the offense of aggravated assault, and assessed his punishment at twenty years= imprisonment. In three issues, appellant contends he received ineffective assistance of counsel at the hearing on the motion to revoke his community supervision. We affirm.

Appellant contends his counsel was ineffective because (1) he did not present any evidence in defense of appellant, (2) he advised appellant to plead Atrue@ to the violations in the motion to revoke community supervision, and (3) he failed to present any evidence at the punishment phase of the hearing.

We adhere to the United States Supreme Court=s two‑pronged test to determine whether counsel=s representation was so inadequate that it violated appellant=s Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687‑88 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.BCorpus Christi 2000, no pet.). Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). First, the appellant must show that counsel=s performance was deficient; in other words, that counsel=s assistance fell below an objective standard of reasonableness. Hernandez, 726 S.W.2d at 55. The deficiency must be of the extent that counsel failed to function as counsel. Yates v. State, 917 S.W.2d 915, 920 (Tex. App.BCorpus Christi 1996, pet. ref=d). Second, the appellant must prove that Athe deficient performance prejudiced the defense@ by Aa reasonable probability that, but for counsel=s errors, the result of the proceeding would have been different.@ Munoz, 24 S.W.3d at 433. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 693; Hernandez, 726 S.W.2d at 55. AFailure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.@ Strickland, 466 U.S. at 700.

Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991). In the absence of evidence of counsel=s reasons for the challenged conduct, we will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 814; see Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003) (AAppellate courts can rarely decide the issue of unreasonable performance because the appellate record rarely speaks to the strategic reasons that counsel may have considered.@).

There is a rebuttable presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that counsel made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). The presumption may be rebutted by evidence of counsel=s reasoning or lack thereof. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The most effective way to demonstrate ineffective assistance of counsel is by presenting evidence at a hearing on a motion for new trial. See generally McCain v. State, 995 S.W.2d 229, 245 (Tex. App.BHouston [14th Dist.] 1999, pet. denied).

The record reflects that appellant filed a motion for rehearing of the motion to revoke, but no action was taken on the motion. Thus, the record contains no evidence demonstrating counsel=s reasoning or lack thereof. Consequently, appellant=s allegations of ineffectiveness are not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness. McFarland, 928 S.W.2d at 500. Accordingly, we hold that appellant has not sustained his burden of proving his ineffective assistance claims by a preponderance of the evidence.[2] Appellant=s first, second, and third issues are overruled.

The judgment of the trial court is affirmed.



FEDERICO G. HINOJOSA

Justice





Do not publish. See Tex. R. App. P. 47.2(b).



Memorandum Opinion delivered and filed

this the 8th day of June, 2006.

[1] Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.



[2] This holding does not prevent appellant from raising this claim by an application for post-conviction writ of habeas corpus. Ex parte Nailor, 149 S.W.3d 125, 130-31 (Tex. Crim. App. 2004); Ex parte Varelas, 45 S.W.3d 627, 629 (Tex. Crim. App. 2001).

how many will appeal in Hail?

December 23, 2001

Act overhauls indigent legal defense

By TOMMY WITHERSPOON Tribune-Herald staff writer

When George W. Bush was running for president, the national spotlight hit Texas with a white-hot glare.

Nowhere was the focus more intense than on the state's criminal justice system, the country's runaway leader in administering the death penalty but second to last in per capita funding for indigent defense.

When Bush guaranteed that no innocent man had been put to death under his watch, the gauntlet was thrown down. Horror stories emerged of court-appointed defense attorneys sleeping through trials and criminal defendants languishing in jail for months without benefit of counsel.

With those tales and plenty of others on their minds, Texas legislators pushed through wide-sweeping Senate Bill 7, also known as the Texas Fair Defense Act. The act overhauls Texas' indigent criminal defense system and provides new minimum standards for lawyers.

Among other things, the act requires the prompt appointment of defense counsel after arrest; prompt attorney contact with defendants; and establishes minimum qualifications that appointed attorneys must meet. It also defines basic standards for determining indigency; outlines methods judges use to appoint attorneys; and requires judges to establish an attorney fee schedule.

While civil libertarians and others have praised the Fair Defense Act, some see it as another example of the state setting up burdensome, unfunded requirements that are not necessary.

"I think it is going to create a bureaucracy and a system to address a problem that does not exist in this county," said 19th State District Judge Ralph Strother, McLennan County's juvenile court judge. "It is going to be complex and difficult to administer. Six months from now I may change my mind. But right now it looks to me like it is going to create a greater roadblock to justice than anything that the act was contemplated to correct."

Counties must adopt new procedures under the bill and have them on file with the Office of Court Administration in Austin by Jan. 1.

Bill Beardall, executive director of the Equal Justice Center, a nonprofit law center based in Austin that pushed for the indigent criminal defense reforms, said the act is "definitely a step in the right direction to improve the state's antiquated, substandard system."

"It is certainly not a panacea and it only sets in motion a process that we hope will lead to gradual and incremental improvements over a period of years," Beardall said. "But on the other hand, it is really the greatest single step forward in indigent defense reform that any state has taken in one time."

In McLennan County, officials involved in the judicial system met last week to formulate the county's plan, which, in many instances, amounts to nothing more than tweaking the system that is already in place.

Among the bigger changes in store are the establishment of a system by which attorney qualifications are judged and dramatic increases in pay for court-appointed attorneys, which will be funded by the county.

In felony court, 54th State District Judge George Allen will establish minimum experience levels for attorneys depending on the seriousness of the crimes, from capital murder cases down to state-jail felonies.

Allen will establish a list of attorneys whom he thinks can handle first-degree felonies, those qualified to handle second-degree felonies and those who can take on third-degree or state-jail felonies. Only the most experienced criminal attorneys will be given capital murder cases, as has been Allen's custom over the years.

In juvenile court, Strother must decide which attorneys to assign cases that range from murder to serious assaults to truancies and shoplifting. David Hodges and Mike Gassaway, the county's two county court-at-law judges, will keep similar attorney lists for the misdemeanor cases that come through their courts.

Most of the judges also are using the act as impetus to revise the county's 20-year pay structure for court-appointed attorneys. While Allen paid the 30 or so attorneys on his court-appointment list a flat fee of $400 for a guilty plea of any kind, he now will increase that incrementily by offense level: $400 for third-degree felonies, $500 for second-degrees and $750 for first-degree felony pleas.

"I just think that this makes it more equitable and fair," Allen said. "A lot of this is cosmetic because you have things going on in other areas of the state that we don't have here and sometimes bad facts make for bad laws. But there are some inequities in the way lawyers are paid for court-appointed cases and I think this will address that. The reason they made the changes is to try to get more continuity."

Strother, who also will increase attorneys' fees in juvenile court, said there is an element of public service involved in taking a court appointment to represent an indigent defendant.

"If we are trying to create a system where we are equating the value of justice with the fees that are paid, isn't that the exact opposite of what this whole system is supposed to be about? To me, this is sending the signal that justice equals money and that has been the complaint of people who wanted to create this in the first place. So I am not sure we are getting very far," Strother said.

Walter M. Reaves Jr., an experienced criminal defense attorney from West, served on a local Bar Association committee to help draft proposed measures for the McLennan County plan. He said he thinks increases in attorneys' fees will help attract better-qualified attorneys to the court appointment pool.

"It is long overdue," Reaves said. "Some places obviously need it more than others. We have a fairly decent system that works here, but not every (place) in the state has that same system. In a lot of places, I think it is going to do a lot of good, and everywhere, it will do some good to increase the fees that are paid to lawyers. Lawyers need to be paid a fee that is at least consistent with the amount of work you are putting into it."

Reaves said most counties will have to increase fees paid to attorneys because the act requires that attorney "overhead" expenses, such as office rent, staff, equipment and utilities, be factored into the rate structure.

"I'm not sure the county commissioners or a CEO of a major corporation would want to be represented by an attorney who is being paid $50 an hour," Reaves said. "If you are being paid $50 an hour or a flat fee of $400 and you put in seven or eight hours on a case, you are not making any money. In fact, you are probably losing money."

McLennan County Auditor Steve Moore said that the county spent $1.25 million in 2000-01 on indigent defense. That figure includes fees for court-appointed attorneys, investigators, expert witnesses, evidence analysis and language translators.

The county has budgeted $1.27 million for those services for the budget year that started Oct. 1, Moore said.

"The act does not mandate that those fees go up," Moore said. "It just provides for the courts to develop a structure that will be used in handling indigent defense. We did not know how the act would affect the costs when we were working on the preliminary budget."

County Commissioner Lester Gibson said the system needs to be improved.

"If you don't have money for a lawyer, you are behind the eight ball," Gibson said. "If you have money, you can get representation. We have a system that is well-funded in regard to the district attorney's office and law enforcement, which it should be. But it is disparaging to the defense point of view. I think the intent of the law will improve indigent representation."